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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator James A. Evenson filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Agency did not file an opposition
to the Union's exceptions.

The grievant was suspended for 5 days for fighting on duty and
inflicting bodily harm on another employee. The Arbitrator found that the
penalty was too severe and reduced the suspension to 1 day. We conclude that
the Union fails to establish that the award is deficient. Accordingly, we will
deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a contract law instructor and an attorney, was suspended
for 5 days for fighting on duty and inflicting bodily harm on another employee.
According to the proposal to suspend the grievant, another employee, employed
as a training instructor, came to the grievant's office to inquire about the
grievant's request to use the computer scanner for the grievant's course
materials. During the discussion, the grievant told the training instructor
that he wanted the materials scanned onto his own computer disc so that the
grievant could get the materials published. The training instructor became
upset at this request and told the grievant that the materials belonged to the
Agency and not the grievant. The two employees argued about the materials and
the training instructor became more upset during the argument. As the training
instructor turned and walked away, he called the grievant an
"asshole . . . ." Award at 10. The grievant responded with
"You can go to hell . . . ." Id. The training instructor returned to the
grievant's office and invited him to go outside and fight. The grievant
accepted and the two employees walked out of the building. As they came out of
the building, they began to fight and a series of punches were thrown by both
employees. The fight was broken up by personnel from the building.

In suspending both employees for 5 days, the Agency took the position
that both employees were equally culpable. In arriving at the decision to
suspend the grievant, the grievant's supervisor had determined that the cause
of the argument that led to the altercation was not relevant to her decision
and that the grievant was not coerced into accompanying the other employee
outside. In her view, the grievant could have done a number of things to avoid
the fight, but, instead, the grievant chose to go outside with the other
employee. The grievant filed a grievance over his suspension. The grievance was
not settled and was submitted to arbitration on the issue of whether there was
just cause for the suspension of the grievant for 5 days.

Before the Arbitrator, the Union took the position that the incidents
before the fight were important. According to the Arbitrator, the Union
asserted they should be considered and that the grievant should receive no more
than a reprimand. The Arbitrator rejected the Agency's position that the
factors that led up to the fight were not relevant. He agreed with the Union
that the incidents before the fight were important and would be considered. The
Arbitrator found that the training instructor had a pattern of arguing with and
intimidating people, and "[f]or some reason, it appears he has some sort of
personal vendetta against the 'lawyers.' Not only with the Grievant but with
his predecessors too." Id. at 12. The Arbitrator found that the grievant
had no prior history of aggressiveness or intimidation. The Arbitrator noted
the testimony of a witness to the events who testified that the grievant's
behavior was calm and not offensive while the training instructor loudly
threatened the grievant, shook his fist at the grievant, and slammed his hand
on the grievant's desk. The Arbitrator found that the training instructor's
behavior was "absolutely not the behavior of a professional person but rather
the behavior of a rube." Id. In the judgment of the Arbitrator, the
training instructor's "behavior and conduct [wa]s the major reason for the
fight." Id. at 14.

However, the Arbitrator did not absolve the grievant of all
responsibility for the fight. He found that the grievant did go outside with
the other employee and ruled that he should not have done so. He also found
that after the fight was over, the grievant "decided he needed to get in one
more blow and as a result a second fight almost ensued." Id. The
Arbitrator ruled that the grievant should not have attempted to resume the
fight. Accordingly, the Arbitrator found that the appropriate penalty was a
1-day suspension and ordered that the grievant's suspension be reduced.

III. First Exception

A. Union's Contentions

The Union contends that the Arbitrator "erred when he upheld a
punishment for the [grievant] when [the grievant], a nonviolent person, 'walked
outside,' when the only evidence on the record showed that the reasons that
[the grievant] 'walked outside' were to stop the assailant[']s intimidation . .
. by calling his bluff, and because [the grievant] was coerced outside to get
out of a dangerous room and a dangerous building . . . ." Exceptions at 7. The
Union argues that the award is deficient in this respect because the Arbitrator
failed to make any finding as to what the grievant's intent was in walking
outside. The Union claims that the grievant's intentions "were always
honorable" and that leaving the room was the grievant's only reasonable means
of escape. Id. at 2. The Union also notes that the claims examiner on
the grievant's worker compensation claim concluded that the grievant "acted
without wilful misconduct, and with no intention to injure another." Id.
at 1. The Union maintains that the Arbitrator "acted arbitrarily when he did
not follow this decision." Id.

B. Analysis and Conclusions

We conclude that the Union's exception fails to establish that the
award is deficient. We have repeatedly held that it is for the arbitrator to
determine whether a disputed disciplinary action is warranted and, if so,
whether the penalty assessed was reasonable. For example, GeneralServices Administration, Region 2 and American Federation of Government
Employees, Local 2431, 46 FLRA 1039, 1044-45 (1992) (GSA, Region 2);
U.S. Department of Veterans Affairs, National Memorial Cemetery of the
Pacific and International Association of Machinists and Aerospace Workers,
Hawaii Federal Lodge 1998, 45 FLRA 1164, 1172 (1992) (National Memorial
Cemetery of the Pacific). In our view, the Union is merely disagreeing with
the Arbitrator's determination that the grievant should not have gone outside
with the other employee and, therefore, could not be absolved of all
responsibility for the fight. Such disagreement cannot provide a basis for
finding an award deficient under the Statute. SeeGSA, Region 2,
46 FLRA at 1044-45.

The Union's allegation with respect to the grievant's worker
compensation claim also provides no basis for finding the award deficient.
Although the Union alleges that the claims examiner on the compensation claim
concluded that the grievant "acted without wilful misconduct," the Union
provides no evidence of that finding in support of its exception. Exceptions at
1. The letter granting the grievant's claim, which was submitted by the Union,
contains no such findings. Moreover, even if the examiner had so concluded, the
Union fails to establish, and it is not otherwise apparent, on what basis a
decision on worker compensation barred the Arbitrator from determining, as a
disciplinary matter, that the grievant could not be absolved of all
responsibility for the fight. SeegenerallyU.S. Department of
the Air Force, Scott Air Force Base, Illinois and National Association of
Government Employees, Local R7-23, 35 FLRA 978, 981-983 (1990) (discussing
issue preclusion in the review of arbitration awards under the Statute).

Accordingly, we will deny the exception.

IV. Second Exception

A. Union's Contentions

The Union contends that the Arbitrator erred when he upheld punishment
of the grievant based on the Arbitrator's finding that the grievant started a
"second fight . . . ." Exceptions at 7. The Union claims
that the Arbitrator was confused in ruling that after the fight was over, the
grievant decided he needed to get in one more blow and a second fight almost
ensued. The Union asserts that the "overwhelming evidence--and all of the
credible evidence--, and certainly a preponderance of the evidence,
demonstrates that the fight was never stopped." Id. at 3. The Union
argues that the Arbitrator should have determined whether the fight had been
stopped from the perspective of the grievant. In addition, the Union contends
that the Arbitrator erred in stating that the grievant believed that he should
have received a reprimand. The Union claims that the grievant and the Union
disputed any punishment. The Union explains that the grievant "grieved in the
alternative that, even if the original decision maker were justified in
punishing the [grievant], the original decision maker did not follow proper
procedures to determine the appropriate amount of the punishment, and that the
[grievant] would have only been given the minimum amount of punishment, oral
reprimand, under the circumstances of this case." Exceptions at 8.

B. Analysis and Conclusions

We view the Union's assertions that the Arbitrator erred as a
contention that the award is based on nonfacts, and we conclude that the Union
fails to establish that the award is deficient.

To establish that an award is based on a nonfact, the appealing party
must demonstrate that the central fact underlying the award is clearly
erroneous, but for which a different result would have been reached by the
arbitrator. For example, GSA, Region 2, 46 FLRA at 1046-47.
However, this basis for finding an arbitration award deficient does not permit
the appealing party to dispute the arbitrator's findings of fact. As the
Supreme Court has advised, "[t]he parties did not bargain for the facts to be
found by a court, but by an arbitrator chosen by them who had more opportunity
to observe" the grievant and the witnesses and who was familiar with the case.
UnitedPaperworkers v. Misco, Inc., 484 U.S. 29, 45 (1987)
(Misco). In addition, in Misco, the Supreme Court reaffirmed its
holding in United Steelworkers v. Enterprise Wheel & Car Corp.,
363 U.S. 593, 596 (1960) (Steelworkers) that courts are not
authorized to reconsider the merits of an award even when a party claims that
the award rests on errors of fact. 484 U.S. at 36-38. The Court explained that
in order to resolve disputes, an arbitrator must find facts, and a court may
not reject those findings simply because it disagrees with them. Id.

The U.S. Court of Appeals for the First Circuit recognized these
principles in adopting nonfact as a basis on which to find an arbitration award
deficient. Electronics Corporation v. IUE Local 272, 492 F.2d 1255 (1st
Cir. 1974) (Electronics Corp.). Chief Judge Coffin specifically rejected
any attempt "to subvert the arbitral process" and emphasized how restrictive
nonfact is as a basis for finding an arbitration award deficient. 492 F.2d at
1257. The court indicated that in order for an award to be found deficient on
this ground, the appealing party should demonstrate that the arbitrator not
only erred in the view of the facts, but that the sole articulated basis for
the award was clearly in error and that the evidence discloses a gross mistake
of fact but for which, in accordance with the expressed rationale of the
arbitrator, a different result would have been reached. Id.;
accordGSA, Region 2, 46 FLRA at 1047. Stating its approval of
both the principles of the Steelworkers and the approach of
Electronics Corp. in reviewing arbitration awards, the U.S. Court of
Appeals for the Sixth Circuit has limited nonfact as a basis for finding an
arbitration award deficient to "clear misstatements of undisputed historical
fact." National PostOffice Mailhandlers v. U.S. Postal Service,
751 F.2d 834, 843 (6th Cir. 1985). That court refuses to find an arbitration
award deficient on the basis of a disagreement with the arbitrator's factual
findings and determinations on disputed or ambiguous evidence. Id.

In reviewing awards alleged to be deficient because they are based on a
nonfact, we apply the limitations recognized by the Federal courts in reviewing
arbitration awards in the private sector, and we apply the principles of the
Supreme Court in generally refusing to disturb the factual findings and
determinations of arbitrators in the Federal sector. Exceptions constituting
nothing more than disagreement with the arbitrator's factual findings and
determinations on disputed or ambiguous evidence will not be found deficient as
based on a nonfact and will be summarily denied.

In this case, it is clear that the circumstances under which the fight
ended were disputed. Consequently, the Union's claim, that the Arbitrator erred
by finding that as a result of the grievant's conduct a second fight almost
ensued, constitutes disagreement with the Arbitrator's factual determination
and provides no basis for finding that the award is deficient because it is
based on a nonfact. Moreover, the Arbitrator's statement that the grievant
believed that a reprimand was an appropriate penalty clearly is not "the sole
articulated basis for the award . . . ." GSA, Region
2, 46 FLRA at 1047; Electronics Corp., 492 F.2d at 1257.
Consequently, the statement can provide no basis for finding that the award is
deficient because it is based on a nonfact. Accordingly, we will deny the
exception.

V. Third Exception

A. Union's Contentions

The Union contends that the award is deficient because the Arbitrator
upheld discipline against the grievant "when the [grievant] was deprived of the
appropriate procedural protections" in violation of the grievant's due process
rights under the Fifth Amendment of the U.S. Constitution. Exceptions at 8. The
Union lists the following as deprivations of constitutional due process:

1. the evidence was not sufficient to allow the deciding official to
discipline the grievant;

2. the specific reasons for the discipline required by 5 U.S.C.
§ 7503 did not specify that the grievant was being disciplined for
starting a second fight;

3. the deciding official destroyed notes of her administrative
investigation;

4. the deciding official admitted the existence of notes related to
the penalty determination; later denied their existence; and then produced the
notes at the arbitration hearing;

5. the collective bargaining agreement precluded the grievant from
participating in his own defense in critical areas of the arbitration,
including selection of the arbitrator and prehearing discovery, which
preclusion caused the grievant to be unfairly surprised by new reasons being
argued at arbitration to support the discipline;

6. the collective bargaining agreement forced the grievant to be
represented by the Union president, "causing a huge disparity between the legal
abilities of the agency's representation and the legal abilities of [the
grievant's] representation;" Id. at 8;

7. the Arbitrator was chosen by the Agency and the hearing set
without notice to the Union; and

8. the collective bargaining agreement allows the Agency to
inherently control who will be selected as the arbitrator to such an extent
that the Agency has an undue influence over the decision of the arbitrator
selected and the Agency exerted that influence in this case when the Agency's
attorney showed disgust at the Arbitrator's statements favorable to the
grievant, thereby indicating that the Agency would not select him in the
future.

B. Analysis and Conclusions

In National Memorial Cemetery of the Pacific, 45 FLRA 1164, we
addressed what process is due under the U.S. Constitution when a Federal
employee is suspended for 14 days or less. We held that because 5 U.S.C. §
7503 provides that nonprobationary, competitive service employees cannot be
suspended for 14 days or less except for such cause as will promote the
efficiency of the service, these employees, such as the grievant in this case,
have a constitutionally protected property interest in their employment without
such suspensions. However, we explained that the question remained of what
process was due.

We recognized that in Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985) (Loudermill), the Court determined
that before public employees can be removed, due process requires, at a
minimum, that they be given notice of the charges against them and "some kind
of a hearing . . . ." 470 U.S. at 542. More specifically,
the Court held that prior to removal, "the tenured public employee is entitled
to oral or written notice of the charges against him, an explanation of the
employer's evidence, and an opportunity to present his side of the story."
Id. at 546. In addition, we noted that earlier in Goss v. Lopez,
419 U.S. 565 (1975) (Goss), the Court had addressed the procedural due
process requirements when a student is suspended from school. In Goss,
the Court concluded that prior to suspension from school, due process requires
that the student be given notice of the charges and, if the student denies
them, an explanation of the evidence and an opportunity to respond to the
charges. In determining what process is due for short-term suspensions, we were
persuaded by the courts that have used these two cases as benchmarks of
constitutional due process. Accordingly, we held that, as a constitutional
matter, nonprobationary, competitive service Federal employees are not due
post-suspension proceedings and that they are due predecisional proceedings no
more formal or extensive than those required by Loudermill and no less
extensive than those required by Goss.

Viewing the Union's exception in terms of these requirements, we find
that the process provided the grievant during the proceedings before the agency
satisfied the requirements of Loudermill and, consequently, was
constitutionally sufficient. Prior to the decision to suspend the grievant for
5 days, the grievant was provided with written notice of the charges against
him, an explanation of the Agency's evidence, and an opportunity to present his
side of the story. In our view, the Union's exception fails to establish
otherwise. The fact that the Arbitrator sustained some discipline, in part, on
the basis of the grievant's actions after the fight was over that nearly
resulted in a second fight does not render the written notice of the Agency's
charges against the grievant constitutionally deficient. We find that the
grievant was clearly notified that the Agency proposed to suspend him for
fighting on duty and inflicting bodily harm on another. We also find that the
Union's allegations concerning the notes of the deciding official fail to
establish any constitutional deprivation. In our view, the Agency adequately
explained and notified the grievant of the evidence on which the proposed
suspension was based.

In fact, much of the Union's exception does not even address the
predecisional process, which is all that is constitutionally mandated for
suspensions of 14 days or less. National Memorial Cemetery of the
Pacific, 45 FLRA at 1177. Thus, the Union's complaints about the
arbitration process fail to establish that the grievant was denied
constitutional due process and provide no basis for finding that the award
violates the Constitution, as alleged by the Union. Furthermore, the issue of
whether the Arbitrator was properly selected in accordance with applicable
procedures was apparently not raised before the Arbitrator and cannot now be
raised before the Authority as a basis for finding the award deficient. 5
C.F.R. § 2429.5; seealsoNational Memorial Cemetery of
the Pacific, 45 FLRA at 1169-70. Moreover, even viewing the Union's
allegations of the inherent control of the Agency over the arbitrator selection
procedure as a contention that the award was obtained by undue means, we find
that the Union fails to establish that the award is deficient. In determining
whether an award is deficient on this basis, the Authority requires a showing
of an impropriety that destroyed the fundamental fairness of the arbitration
proceeding. National Gallery of Art and American Federation of Government
Employees, Local 1831, 39 FLRA 226, 233-34 (1991). No such showing has been
made by the Union.

*/ In resolving the Union's claim that
the award is deficient because the Arbitrator upheld discipline when the
grievant had been deprived of due process under the Constitution, we note that
recently in National Treasury Employees Union and Federal Deposit Insurance
Corporation, Division of Liquidation, Orlando Consolidated Field Office,
Orlando, Florida, 48 FLRA 462, 465 (1993) (FDIC), we stated that we
are prohibited from disposing of a case on constitutional rather than statutory
grounds. We note that in that case, the Union was essentially challenging the
constitutionality of the Civil Service Reform Act, and it is clear that the
Authority is not authorized to adjudicate the constitutionality of its enabling
legislation. SeeNTEU v. FLRA, 986 F.2d 537, 540 (D.C. Cir.
1993). Thus, FDIC should not be read to limit the Authority's power to
resolve exceptions under section 7122(a) of the Statute, which contend that an
arbitration award is deficient because it is contrary to the U.S. Constitution.